P. Chinnayyan Nadar and Others v. H. Raju, T. Xavier, National Insurance Co. Ltd. and United India Insurance Co. Ltd.

1 MACA No.2288 of 2008 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 27[TH] DAY OF OCTOBER 2021 / 5TH KARTHIKA, 1943 MACA NO. 2288 OF 2008** **AGAINST THE ORDER/JUDGMENT IN OPMV 1202/2001 OF MOTOR ACCIDENT** ## **CLAIMS TRIBUNAL ,NEYYATTINKARA, THIRUVANANTHAPURAM** ## **APPELLANT/S:** |1|P.CHINNAYYAN NADAR| |---|---| ||A.A.S.BHAVAN, P.O.KARODU, VILAVANCODE, KANYAKUMARI| ||DISTRICT, NOW RESIDING AT PUSHPASARAM,,| ||THADATHIKULAM, KANJIRAMKULAM.P.O, NEYYATTINKARA.| |2|OMANA, W/O.CHINNAYYANN NADAR| ||M/O.DECEASED AJAYAN, RESIDING OF -DO-.| |3|SAJU, S/O.CHINNAYYAN NADAR| ||RESIDING OF -DO- -DO-.| |4|AJITHA, D/O.CHINNAYYAN NADAR -DO-.| ||BY ADV SRI.B.S.SWATHI KUMAR| |**NDE**|**NT/S:**| |1|H.RAJU,S/O.HARIS,A.KURUTHENCODE| ||THENVILA, VENPAKAL, PARASSALA, THIRUVANANTHAPURAM.| |2|MR.T.XAVIER, M.G.PARTNER, M/S.MILTION| ||ROADWAYS, E.R.G.ROAD, ERNAKULAM.| |3|THE SENIOR DIVISIONAL MANAGER, NATIONAL| ||INSURANCE COMPANY LTD, ST.JOSEPH BUILDING,,| ||VAZHUTHACAUD, THIRUVANANTHAPURAM.| |4|THE SENIOR DIVISIONAL MANAGER, UNITED| ||INDIA INSURANCE COMPANY LTD, L.M.S.BUILDING,,| ||THIRUVANANTHAPURAM.| ||BY ADVS.| ||SMT.DEEPA GEORGE| ||SMT.SARAH SALVY| ||SRI.SANIL KUMAR| ## **RESPONDENT/S:** ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME** **UP FOR ADMISSION ON 27.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA No.2288 of 2008 ## **C.S.DIAS, J. ====================== MACA No.2288 of 2008 ====================== Dated this the 27[th] day of October, 2021.** ## **JUDGMENT** The appellants were the petitioners in OP (MV) No.1202/2001 on the file of the Motor Accidents Claims Tribunal, Neyyattinkara. The respondents in the appeal were the respondents before the Tribunal. 2. The appellants had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of one Ajayan (deceased), the son of the appellants 1 and 2 and brother of the appellants 3 and 4. 3. It was the case of the appellants that, on 13.6.2001, while the deceased was driving a lorry bearing registration No.KL-6/3713 from Ernakulam to Thiruvananthapuram, when he reached near Mamom Bridge at Attingal, the rear wheel of the lorry turned 3 MACA No.2288 of 2008 defect. When the deceased and the cleaner of the lorry were inspecting the wheel, another lorry bearing registration No.KL-7B/1539 (offending lorry), driven by the first respondent in a rash and negligent manner, hit the lorry of the deceased. The deceased and the cleaner sustained injuries and the deceased instantaneously lost his life. The deceased was a driver by profession and was earning a monthly income of Rs.7,500/-. The offending lorry was owned by the second respondent and insured with the third respondent. The fourth respondent was the owner of the lorry driven by the deceased. The appellants were the dependents of the deceased. Hence they claimed a compensation of Rs.9,00,000/- from the respondents. 4. The cleaner of the lorry also filed OP (MV) 1163/2001 before the same Tribunal, seeking compensation from the respondents, for the injuries sustained in the same accident. 5. The respondents 1 and 2 did not contest the 4 MACA No.2288 of 2008 proceedings. 6. The third respondent had filed a written statement contending that the claim petition was bad for non-joinder of necessary parties. The compensation claimed by the appellants was excessive. It was also contended that the second respondent – the owner of the offending lorry – had violated the policy conditions. Hence, the third respondent be exonerated of any liability. 7. The fourth respondent had filed a writtenstatement admitting that the lorry driven by the deceased had a valid insurance policy. However, it was contended that the accident occurred due to the negligence of the first respondent. Hence, the fourth respondent prayed for absolution. 8. The Tribunal consolidated and jointly tried the two original petitions. 9. The appellants and the other petitioners examined PWs 1 to 3 and marked Exts A1 to A19 series in 5 MACA No.2288 of 2008 evidence. The third respondent marked Ext B1 copy of insurance policy in evidence. 10. The Tribunal, by its common award allowed the captioned claim petition, by permitting the appellants 1, 2 and 4 to realise from the third respondent an amount of Rs.2,99,900/-, with interest at the rate of 9% per annum from the date of petition till the date of realization. The compensation amount was directed to be apportioned among the appellants 1,2 and 4 in the ratio of 30:50:20. 11. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners are in appeal. 12. Heard; Sri.B.S Swathikumar, the learned counsel appearing for the appellants/petitioners, Smt.Sarah Salvy, the learned counsel appearing for the third respondent/insurer of the offending lorry and Smt.Deepa George, the learned counsel appearing for the fourth respondent/insurer of the lorry driven by the deceased. 13. The question that arises for consideration in the 6 MACA No.2288 of 2008 appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Negligence and liability** 14. Ext A2 charge-sheet filed by the Attingal Police in crime No.245/2001 proves that the accident happened due to the negligence of the first respondent. Admittedly, the second respondent was the owner and third respondent was the insurer of the offending lorry. The third respondent admitted that the offending lorry had a valid insurance coverage and has not established that the second respondent had violated the insurance policy conditions. Therefore, the third respondent is to indemnify the liability of the second respondent arising out of the accident. ## **Income of the deceased** 15. The appellants had claimed that the deceased was a driver by profession and earning a monthly income of Rs.7,500/-. In order to substantiate their assertion, the 7 MACA No.2288 of 2008 appellants produced Ext A9 salary certificate, which was issued by none other than the third appellant/petitioner – the brother of the deceased – who was examined as PW2. The Tribunal refused to accept Ext A9 for the reason that the certificate was issued by an interested person who is none other than the third claimant before the Tribunal. The Tribunal, accordingly, fixed the notional monthly income of the deceased at Rs.2,600/-. 16. The refusal of the Tribunal to accept Ext A9 is justifiable because Ext A9 was issued by none other than the brother of the deceased who himself was claimant No.3. Therefore, I confirm the finding of the Tribunal in refusing to accept the income certified in Ext A9. 17. In **Chameli Devi vs. Jivrail Mian [2019 KHC 5352]** , the Hon'ble Supreme Court has fixed the notional monthly income of a carpenter in the year 2001 at Rs.5,000/-. 18. Following the yardstick in the aforecited decision 8 ## MACA No.2288 of 2008 and considering that the accident occurred in the year 2001, I fix the monthly notional income of the deceased at Rs.5,000/- instead of Rs.2,600/- fixed by the Tribunal. ## **Multiplier** 19. As per Ext A6 driving licence, it is certified that the deceased was aged 24 years at the time of the accident/death. In the light of the law laid down in **Sarla** **Verma v. Delhi Transport Corporation [(2009) 6 SCC** **121]** , the relevant multiplier is '18'. ## **Dependents of the deceased** 20. Admittedly, the deceased was a bachelor. 21. Following the ratio in **Sarla Verma** (supra) and ## **National Insurance Co.Ltd v Pranay Sethi [(2017) 16** **SCC 680]** , one-half of the compensation has to be deducted towards personal living expenses of the deceased. ## **Future Prospects** 22. Again, going by the law laid down in **Sarla** 9 MACA No.2288 of 2008 **Verma and Pranay Sethi** (supra) and considering the fact that the deceased was aged 24 years at the time of the accident/death and the relevant multiplier being '18', the dependents of the deceased are entitled for future prospects at 40% on the compensation for loss of dependency. ## **Loss of dependency** 23. Taking into account the above mentioned factors, i.e., the monthly income of the deceased at Rs.5,000/-, the multiplier at 18, future prospects at 40%, and deducting one-half of the compensation towards the personal living expenses of the deceased, I refix the compensation for loss of dependency of the appellants at Rs.7,56,000/instead of Rs.2,70,400/- awarded by the Tribunal. ## **Conventional heads of claim** 24. The Hon'ble Supreme Court in Clause (viii) of paragraph 61 of **National Insurance Co.Ltd v Pranay Sethi [(2017) 16 SCC 680]** has held that the dependents 10 MACA No.2288 of 2008 of the deceased are entitled for compensation under the conventional heads viz., funeral expenses, loss of estate and loss of consortium at Rs.15,000/-, Rs.15,000/- and Rs.40,000/- respectively. 25. In the instant case, the Tribunal has awarded an amount of Rs.5,000/- towards funeral expenses and Rs.10,000/- towards loss of estate. 26. In the light of the ratio in **Pranay Sethi** (supra), I enhance the the compensation under the above said heads by a further amount of Rs.10,000/- and Rs.5,000/-, respectively. 27. It is found by the Tribunal that only the appellants 1, 2 and 4 were the dependents of the deceased because the third appellant was the employer of the deceased and was not a dependent on the deceased. I confirm the said finding. 28. Thus, I award an amount of Rs.40,000/- each, as loss of consortium, to the appellants 1,2 and 4, i.e., a total 11 MACA No.2288 of 2008 amount of Rs.1,20,000/-. ## **Loss of love and affection and pain and sufferings** 29. In **New India Assurance Co. Ltd v. Somavathy and Ors [(2020) 9 SCC 644]** , the Hon'ble Supreme Court has held that once compensation under the head loss of consortium is awarded, no amount can be awarded under the head 'loss of love and affection', as it would amount to duplication of compensation. 30. Similarly, in paragraph 19 of the **Sarla Verma** (supra), the Hon'ble Supreme Court has held that no amount of compensation shall be awarded under the head 'pain and sufferings', in the case of instantaneous death, to the dependents of the deceased. 31. Therefore, I set aside the amount of Rs.10,000/awarded under the head 'loss of love and affection' and Rs.3,000/- awarded under the head 'pain and sufferings'. ## **Other heads of claim** 32. With respect to the other heads of claim, namely, 12 MACA No.2288 of 2008 transport to hospital and damage to clothing, I find that the Tribunal has awarded reasonable and just compensation. 33. On a comprehensive re-appreciation of the pleadings, materials on record and the law referred to in the afore-cited precedents, I hold that the appellants 1, 2 and 4/petitioners 1, 2 and 4 are entitled for enhancement of compensation as modified and re-calculated above, and given in the table below for easy reference. |SI.<br>No|Head of claim|Amount<br>awarded by<br>the Tribunal<br>(in rupees)|Amounts<br>modified<br>and<br>recalculated<br>by<br>this<br>Court| |---|---|---|---| |1|Transport to hospital|1,000/-|1,000/-| |2|Damage to clothing|500/-|500/-| |3|Funeral expenses|5,000/-|15,000/-| |4|Loss of estate|10,000/-|15,000/-| |5|Pain and sufferings|3,000/-|nil| |6|Loss of love and<br>affection|10,000/-|nil| |7|Loss of consortium|nil|1,20,000/-| |8|Loss of dependency|2,70,400/-|7,56,000/-| ||Total|2,99,900/-|9,07,500/-| 13 MACA No.2288 of 2008 In the result, the appeal is allowed, in part, by enhancing the compensation by a further amount of **Rs.6,07,600/-** (Rupees Six Lakh Seven Thousand Six Hundred only) with interest on the said amount at the rate of 7% per annum from the date of claim petition till the date of realisation, after deducting interest for a period of 1048 days, i.e., the period of delay in filing the appeal and as ordered by this Court on 7.9.2021 in C.M Appln 2/2008, and proportionate costs. The third respondent-insurer is ordered to deposit the enhanced compensation amount with interest and costs before the Tribunal within a period of sixty days from the date of receipt of a certified copy of the judgment. The Tribunal shall disburse the enhanced compensation amount to the appellants 1, 2 and 4/petitioners 1, 2 and 4 in the ratio of 35:35:30 and in accordance with law. Sd/- sks/27.10.2021 **C.S.DIAS, JUDGE**